Under the Act a person with an impairment includes anyone with a physical, intellectual or emotional impairment, a person who had an impairment in the past, or someone assumed to have an impairment.
Direct impairment discrimination occurs when a person is treated less favourably because of their impairment, compared to another person without an impairment in the same or similar circumstances.
Indirect impairment discrimination is when a requirement, condition or practice that is the same for everyone has an unfair effect on a someone because of an impairment, and is unreasonable in the circumstances.
Where does the protection apply?
Under the Act it is unlawful to discriminate against a person because of an impairment, or the impairment of a relative or associate, in certain areas of public life, including:
- Work – in some instances
- Education
- Access to places and vehicles
- Provision of goods, services and facilities
- Accommodation
- Clubs and incorporated associations
- Sport – in some instances
- Application forms
- Superannuation schemes and provident funds – in some instances
- Advertisements.
Responsibilities
Organisations must ensure they provide a working environment and services that are free from impairment discrimination and they must take all reasonable steps to prevent it from happening or they may be held responsible for their employees’ actions.
A person causing, instructing, inducing, helping or permitting another person to do something unlawful is the same as doing it, for the purpose of the Act.
Making a complaint
A person who believes they have been discriminated against because of their impairment can lodge a complaint with the Commissioner. The onus of proof lies with the person making the complaint.
The incident or incidents in the complaint must have occurred within the 12 months previous to the date you lodge your complaint.
In some circumstances the Commissioner may rule there is good reason, or good cause, to include incidents that occurred more than 12 months before the complaint is lodged.
Exceptions
There are some instances where it is not unlawful to discriminate against a person because of their impairment, and these exceptions include:
• Work - where the provision of special services and/or facilities would impose an unjustifiable hardship on the employer • Accommodation - where the provision of special services and/or facilities would impose an unjustifiable hardship on the employer
• Orders of courts and tribunals
• The provision of charitable benefits
• The ordination of priests or ministers of religion
• Domestic workers in private households
• A genuine occupational qualification
• Insurance, if based on reasonable data and statistical evidence
• Where there is a regulation that relates to an infectious disease.
If an individual or organisation relies upon an exception under the Act when a complaint is made against them, they must justify the use of that exception to the Commissioner for Equal Opportunity.
Examples of impairment discrimination
A blind woman was refused service when she entered a cafe accompanied by her guide dog, and was told she would only be served if she sat outside.
A lawyer’s application for income protection insurance was refused when she disclosed she had once experienced depression. This refusal was despite the fact she had not taken any time off work because of her impairment in 10 years.
A real estate agent refused the rental application of an accountant who used a wheelchair, because the agent believed she would not be able to pay the rent and maintain the property because of her impairment.
The parents of a young boy complained their son had been discriminated against because shortly after being told he was autistic, his childcare provider would no longer let him attend the creche.
An employee of a travel agency refused to accept a booking made on behalf of a person with a disability. She did this without asking the nature or extent of the disability.
